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The EPA Won't Have to Hold Mining Companies Responsible for Clean-Up Costs, a Federal Court Rules

The agency claims modern mining practices have reduced the risk of pollution going unaddressed. Will taxpayers still have to pay a price?
A view of the toxic Berkeley Pit on July 6th, 2017, in Butte, Montana. Formerly an open pit copper mine, the Berkeley Pit is part of the largest Superfund site in the United States.

A view of the toxic Berkeley Pit on July 6th, 2017, in Butte, Montana. Formerly an open pit copper mine, the Berkeley Pit is part of the largest Superfund site in the United States.

In a win for the mining industry, the United States Court of Appeals for the District of Columbia Circuit on Friday upheld an Environmental Protect Agency decision not to instate a proposed rule that would have protected taxpayers from having to foot the bill for costly clean-ups of mining pollution.

The ruling came after environmental groups sued the Trump administration last year for dropping the Obama-era proposal that would have required hard-rock mining companies to provide financial assurance that they could pay for any potential environmental clean-up.

Then-EPA Administrator Scott Pruitt said in a statement that the "EPA is confident that modern industry practices, along with existing state and federal requirements address risks from operating hardrock mining facilities." Pruitt also stated that federal financial assurance requirements would be an "undue burden" on the mining industry.

But environmental groups that argue for increased federal mining regulation and oversight say that modern mining practices and existing state regulation haven't kept taxpayers from winding up responsible for mining clean-ups in recent years.

Bonnie Gestring, the northwest program director for Earthworks, a non-profit that studies the impacts of mining and resource extraction, points to the CR Kendall Mine in Montana, where the state initially underestimated potential clean-up costs for an open-pit gold mine that closed in 1997. The mining company didn't provide a large enough bond to the state before it filed for bankruptcy in 2015, leaving behind a more than $6 million clean-up.

In another instance, Montana Tunnels had its permit suspended last year after the owner of the mine failed to post enough bonds to cover estimated clean-up costs. The state currently holds almost $20 million in financial assurance bonds for the mine's clean-up but says that won't be enough. It estimates it will need another $15 million to cover the recalculated clean-up costs, and it's unclear where that money will come from unless Montana Tunnels is sold to another mining company willing to pay the higher amount. But Gestring says the "likely outcome will leave taxpayers responsible."

The gap between estimates for hard-rock mining clean-ups and actual costs isn't unique to Montana. A 2003 report by the Center for Science in Public Participation estimated that there was between $1 billion and $12 billion in unfunded clean-up liability at hard-rock mines across the country. The Center for Public Integrity reported earlier this year that, though estimates for clean-ups are getting more accurate, as many as half of active hard-rock mines could still have inadequate reclamation bonds, meaning taxpayers could still end up having to bridge the gap.

Gestring thinks the EPA's financial responsibility rule would have provided an important remedy to this ongoing problem. "And now we've lost that," she says. If the EPA rule had gone into effect, hard-rock mining companies would have had to set aside $111 to $171 million annually to pay for future clean-ups.

The Associated Press reports that, since 1980, at least 52 mining sites have had spills or released pollution, according to documents previously released by the EPA. While coal mines have been required to provide assurances that they will pay for pollution clean-ups under a 1977 federal law, there is no such federal oversight for hard-rock mining.

John Robison, the public lands director with the Idaho Conservation League (the group that filed the lawsuit against the EPA), says Friday's court decision highlights the need for states and communities to take it upon themselves to ask tougher questions about mining and mine designs. "Communities can't rely on the EPA in protecting public health, safety, and taxpayers," Robison says.